Here’s something you may not have realized: did you know that the United States Supreme Court has never ruled that it is unconstitutional to incarcerate (or even execute) an innocent person? You’d think that everyone could agree that if someone can conclusively prove his innocence, he should not be left to rot in jail. And can’t we all agree that when there’s truly compelling evidence that an innocent person has been wrongfully convicted, the mistake should be corrected so that the innocent person doesn’t get executed? Well, actually, according to the courts, those are still open questions.

Wondering how this could be? Well, here’s how the system works. Say someone is convicted and incarcerated for a crime and loses all of his criminal appeals, but years later newly discovered evidence emerges that proves his innocence. For example, exonerating crime scene DNA that wasn’t tested at the time of the trial is uncovered or the real murderer confesses. The evidence of innocence may be totally convincing, but there still may not be a procedural avenue for the wrongfully convicted prisoner to get the court to even consider the innocence claim.

The typical later-stage effort for the criminal defendant is a petition called a writ of habeas corpus, filed in federal court. These petitions raise a claim that the defendant’s incarceration is unconstitutional. But here’s the glitch: the Supreme Court has never held that it is unconstitutional to incarcerate an innocent person, so courts disagree about whether habeas petitions are even available for those whose only legal claim is that there is powerful new evidence establishing their innocence. So, if a person’s claim is that his constitutional right to an effective attorney was violated and he’s innocent, his claim can be heard. Likewise, if the prosecutors hid exonerating evidence, there is a dual claim – a constitutional violation of due process rights and innocence – so the claim can go forward. But if there’s no independent, free-standing constitutional violation, the innocence claim alone cannot be brought.

Here’s an example of how this can play out. Michael McAlister served 29 years for an attempted rape, all along protesting his innocence. Law enforcement became concerned that they had the wrong man when they learned of a violent, serial rapist, with the same pattern as the rapist in the crime McAlister was convicted of, who looked remarkably similar to McAlister (the victim only had a fleeting look at the bottom half of her assailant’s face). After McAlister was arrested, but before the serial rapist was, rape attempts fitting the same pattern and description continued in the same apartment complex laundry room where the attempted rape attributed to McAlister happened.

Everyone eventually agreed that this was a misidentification and McAlister did not commit the crime, but there was no legal avenue for getting a court to overturn the conviction. Mounting evidence against the serial rapist became so compelling that in 1993, both the prosecutor and the investigator appeared at a parole hearing for McAlister, testifying that they both believed the wrong man had been convicted. In 2002, both the prosecutor and the lead detective supported McAlister in his efforts to get a pardon for the crime. And that became McAlister’s only viable avenue: pardons are an extremely rare and unlikely event, relying on convincing the governor or president to free the prisoner. It wasn’t until May 2015, when the serial rapist confessed to the crime, that the Governor of Virginia finally granted McAlister a pardon.

On this blog, we have written about all sorts of ways people get wrongfully convicted, including the flaws with eyewitness identifications and later de-bunked junk science causing erroneous convictions. Wrongful convictions happen, a lot. Given that reality, it is almost unfathomable that courts tell some of those people that although they have compelling new evidence of their innocence, they are simply out of luck.

 

mcalisterMichael McAlister and the serial offender who confessed to the attempt rape, Norman Derr in 1986.  Photo courtesy of Mid-Atlantic Innocence Project, via Slate.

 

 

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